The Copyright Act of 1978 remains on our statute books, causing immense problems for access to information for everyone, and for teaching, research and learning purposes.
The Act has no provisions for people with disabilities, only limited exceptions for education, libraries and archives. It has no provisions for museums or galleries (custodians of our cultural heritage), or for orphan works (copyright owners who are untraceable or have abandoned their works).
The Act also predates the birth of the internet by five years, so has no provisions for the digital space. Technologies have revolutionised the way people can access knowledge, particularly people with disabilities, yet our copyright law stops them from doing so.
Since his reappointment, President Cyril Ramaphosa has signed a number of Bills, some contentious too, but he has failed to pass the Copyright Amendment Bill approved by the National Assembly on 29 February this year.
Many blind and visually impaired people are authors, creators, performers, employers, employees, researchers, educators, professionals, government officials, retirees, students and children.
They need fair access to information in accessible formats.
On 21 September 2022, the constitutional court ruled the Act to be unconstitutional as it relates to visually impaired people. The court ruled that this must be remedied in the law within two years.
Because the Copyright Bill was not signed timeously, this period, together with the section 13A provisions that were temporarily read into the Act, lapsed on 21 September this year.
Thus it was back to square one for people with visual disabilities who have been experiencing a “book famine” for decades and have been calling for copyright reforms since 1999.
The Copyright Amendment Bill B13F-2017 not only includes exceptions for people with visual disabilities, but also includes those with hearing disabilities, dyslexia and learning disabilities and people who are not able to turn pages or hold books.
These exceptions empower them to access material using assistive technologies, or alternative formats such as braille. The fair use provisions and exceptions for research, education, libraries and archives, museums and galleries and others will also benefit them.
Once the Act has been amended, South Africa will be able to fulfil its undertaking to ratify the 2013 Marrakesh Treaty.
This will enable cross-border exchange of works in accessible formats globally. The doors to global knowledge will be opened to them and the book famine will finally be obliterated.
As of February 2023, the treaty has 97 contracting parties covering 123 World International Property Organisation member states because the European Union joined as a block. South Africa is conspicuous by its absence on the list of signatories.
The copyright reform process commenced in 2009. The Bill, after much panel-beating and polishing, was passed by the National Assembly on 29 February.
The Bill remains unsigned, despite the president being obligated to act in terms of section 79(4), within a reasonable period. He has already acted in terms of section 79(1) by sending the Bill back to parliament in June 2020 for a thorough review on constitutionality issues.
In addition, it was retagged from a section 75 Bill (national) to a section 76 Bill (provincial) which resulted in a further process in the nine provincial legislatures. It was finally passed by parliament on 29 February.
The president is obligated to act as follows:
S 79(4.) If, after reconsideration, a Bill fully accommodates the President’s reservations, the President must assent to and sign the Bill; if not, the President must either:
a) Assent to and sign the Bill; or
b) Refer it to the constitutional court for a decision on its constitutionality.
S 79(5). If the constitutional court decides that the Bill is constitutional, the president must assent to and sign it.
As confirmed by constitutional law scholar and lecturer Pierre de Vos, “The president does not have the power to veto the Copyright Bill.” Referring to the conditions of section 79, De Vos clarifies the process the president must follow.
“These sections make clear that the president is required to sign a Bill duly passed by parliament unless he or she has reservations about the constitutionality of aspects of the Bill. If the president has no reservations about the constitutionality of a Bill, he or she has a duty in terms of section 237 to fulfil the constitutional obligation to sign the Bill ‘diligently and without delay’.”
De Vos points out: “When the president delays signing a bill and refers it back to parliament because he believes the bill is flawed (but constitutionally compliant), the president unconstitutionally usurps the powers of parliament — the only directly elected branch of government. Such a move would amount to a power grab by the executive vis-à-vis the legislature, and could lead to a constitutional crisis.
“By not acting on the Bill in terms of the Constitution, the president will be breaking the law and face impeachment.”
In addition, section 40(1) of the Bill states: “This Act is called the Copyright Amendment Act, 2017 and comes into operation 24 months from the date of publication in the gazette, or an earlier date fixed by the president by proclamation in the gazette.”
Since the president has failed to comply with section 79(4), he will now face legal action in the constitutional court to compel him to sign the Copyright Bill into law, an urgent application was brought against him in the constitutional court on 10 October, by Section27, representing Blind SA.
Denise R Nicholson is a communications and copyright consultant at Scholarly Horizons.
